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Richardson v. Miller8/16/2000
ht on a material contested issue can give rise to a permissive inference that the missing document would have been unfavorable to the party possessing it. See Tennessee Law of Evidence § 401.9, at 99. Parties seeking to take advantage of this inference must demonstrate:
(1) that the party against whom the inference is sought could have introduced the evidence but failed to do so;
(2) that the document was uniquely in the possession of the party against whom the inference is sought and that party could have produced the document by exercising reasonable diligence;
(3) that the document was not equally available to the other parties;
(4) that the document would not have been cumulative to other evidence;
(5) that a reasonable person under the same or similar circumstances would have produced the document had it been favorable; and
(6) that the party against whom the inference is sought has not offered a reasonable excuse for failing to produce the document. See T.P.I. 3-Civil 2.04; State v. Jones, 598 S.W.2d 209, 224 (Tenn. 1980), overruled on other grounds, State v. Shropshire, 874 S.W.2d 634, 638 (Tenn. Crim. App. 1993).
Where the missing evidence is a document, the party seeking the missing evidence instruction must demonstrate that the document existed and was in its adversary's exclusive control. See Fares v. Fox, 603 N.Y.S.2d 892, 893 (App. Div. 1993). The party must also demonstrate that the party possessing the document could have produced it. See Cleveringa v. J.I. Case Co., 595 N.E.2d 1193, 1211 (Ill. App. Ct. 1992). To avoid a missing evidence instruction, the party failing to produce a document in its possession must give a reasonable explanation for failing to produce it. See generally State v. Wilson, 687 S.W.2d 720, 724 (Tenn. Crim. App. 1984).
Evidence that the party failing to introduce a document was acting maliciously is not required. Seldom will parties be able to prove that their adversary maliciously destroyed or secreted a missing document. Courts should consider giving the missing evidence instruction where the missing evidence is shown to be unavailable due to questionable negligence, see DeLaughter v. Lawrence County Hosp., 601 So. 2d 818, 822 (Miss. 1992), or dubious mishandling. See Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 447 (1st Cir. 1997).
A jury issue is created when the party seeking the missing evidence instruction puts on evidence showing (1) that the document exists, (2) that the document is relevant, and (3) that the opposing party had exclusive control of the document and the party possessing the document proffers an explanation for not producing it. See Beers v. Bayliner Marine Corp., 675 A.2d 829, 831-33 (Conn. 1996); DeLaughter v. Lawrence County Hosp., 601 So. 2d at 821-22. When the party failing to produce a document claims that it has been innocently lost, the jury should decide the matter for itself when the evidence, viewed as a whole, colorably creates a credibility issue about whether the document was lost or not. See Bihum v. AT&T;Info. Sys., Inc., 16 Cal. Rptr. 2d 787, 794-97 (Ct. App. 1993); see generally Rogers v. State, 2 Tenn. Crim. 491, 502-03, 455 S.W.2d 182, 187 (1970).
Juries should judge credibility issues. See Kinney v. Yazoo & M.V.R.R., 116 Tenn. 450, 453, 92 S.W. 1116, 1116 (1906); Lorentz v. Deardan, 834 S.W.2d 316, 320 (Tenn. Ct. App. 1992). If a jury concludes that a missing document was genuinely lost and that the document's absence is not brought about by manipulation, then the jury should draw no inference against the non-producing party that the document would have been unfavorable. See Brewer
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